Since before the nation’s founding, Americans have engaged in political speech and advocacy anonymously. Anonymity helps to protect speakers from reprisals, violent or otherwise. It also removes a possible distraction from the contents of the message: the identity and reputation of the speaker.
But private and public actors alike around the country are chipping away at this essential element of speech and advocacy in America. A group is now asking the Supreme Court to hear its case against Alaska and to recognize, again, the First Amendment right to associate and to speak anonymously.
Government collection and misuse of private information is rampant. In New York City, Zohran Mamdani’s administration posted a searchable database of over a million entries containing property owners’ names and addresses. In Washington, D.C., the Securities and Exchange Commission operates a database called the Consolidated Audit Trail designed to track every stock trade in America back to the trader’s name, address, and birthdate. In New Mexico, regulators are trying to force the Rio Grande Foundation to hand over the names of its donors for publishing a candidate scorecard.
Clearly, many government officials see Americans’ private information as a tool to be wielded toward political ends.
The Founding Fathers saw anonymity in political speech as a cultural norm necessary to avoid persecution. Thomas Paine’s Common Sense was published pseudonymously to protect the author from prosecution for treason. Likewise, the Federalist Papers, written to promote ratification of the Constitution, and the Anti-Federalist Papers written in response, were both published under pseudonyms. The authors desired anonymity because they wanted their arguments assessed according to their merits, not authorial identity.
When people fear that their identities will be revealed to the public, many will become less likely to exercise their rights to freely speak and associate. The Supreme Court recognized as much in a critical case from the Civil Rights era.
In NAACP v. Alabama (1958), the Supreme Court unanimously agreed that Alabama could not compel the NAACP to disclose its membership and donor lists. As the court found, doing so would have exposed the NAACP to retaliation, particularly since, at the time, physical violence, cross burnings, and threats of bombings by groups such as the KKK were common. Justice John Marshall Harlan II noted that forced disclosure exposed members to “economic reprisals, loss of employment, threat of physical coercion, and other manifestations of public hostility.”
Decades later, the Supreme Court reaffirmed that ruling in Americans for Prosperity Foundation v. Bonta (2021), holding that California’s donor disclosure rule for nonprofit organizations was unconstitutional. The nonprofit groups in that case had provided evidence that they and their supporters faced threats of violence and harassment for their political views and advocacy. Such dangers, as the court explained, “are heightened in the 21st century and seem to grow with each passing year.”
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Now, some states, including Alaska, require that those engaging in certain forms of political speech include in their messages the personal information of donors. The Alaska Policy Forum is now asking the Supreme Court to review its case after the state sought to penalize APF for failing to register with the state and include the donor disclosures in communications that did not even meet the statute’s criteria for election-related speech. APF should win its case for several reasons, one of which is that its donors have a right to associate with one another and to speak through the organization anonymously. Like the founder’s pseudonyms, associational speech allows Americans to be civically engaged without making themselves targets of harassment. The First Amendment protects that right.
The Supreme Court has already recognized the right to anonymous association and, in McIntyre v. Ohio Elections Commission (1995), labeled anonymity “a shield from the tyranny of the majority.” As it has in cases like NAACP v. Alabama and Bonta, the court should take up Alaska Policy Forum v. Alaska Public Offices Commission and yet again ensure that the First Amendment is a robust shield for liberty.
J. Marc Wheat is general counsel at Advancing American Freedom.
Connor Bolster is an intern at Advancing American Freedom.